14 S.E. 781 | N.C. | 1892
The State offered evidence tending to show that the corporation had been regularly organized under its charter, and elected the superintendent, Rev. R. W. Boyd, and other officers; that the defendant had a distillery within three miles of said home, and had operated the same before the passage of said act and the establishment of said home, but had suspended for a time after the organization of the said (526) home; and then, afterward, on 12 November, 1891, began distilling spirits within the prohibited distance; that after the corporation was organized, it located and established the home near Barium Springs, consisting of a 40-acre farm, the main building being the residence of the orphans and superintendent, and four or five other buildings, consisting of barns, etc.; that said distillery continued in operation by defendant from 12 November till the time of the finding of this indictment, but on 19 November, 1891, the main building of the home, to wit, the residence building, was burned; that temporarily the board of regents removed the orphans for care to a building near Statesville, some five miles from Barium Springs, but that neither the synod nor any other authority had changed the location of the home; that the board of regents had determined to rebuild the burnt house, and plans to that end were now in progress, and the other buildings constituting a part of the home had not been burned, and had never been abandoned, but had been all the while in use for the purposes appertaining to the home, and the defendant never had obtained the written consent of the superintendent *372 of the home to manufacture within three miles of the home. The evidence tending to show the above facts came out on direct and cross-examination of the State's witnesses.
Defendant offered no evidence.
The defendant's counsel contended that the act of the Legislature under which the bill was found was unconstitutional and void, and asked the court to so instruct the jury. This prayer was refused.
There was a verdict of guilty, and judgment thereon, from which defendant appealed. Private Laws 1891, ch. 4, authorized the establishment of an orphans' home at or near Barium Springs, in Iredell County, and forbade, among other things, the manufacture of spirituous or malt liquors within three miles thereof. The orphans' home was established at that point, and the defendant thereafter manufactured spirituous liquor within the forbidden distance without written permission of the superintendent thereof, as provided by the act.
The power of the Legislature to make such enactments is beyond question (S. v. Stovall,
It is contended, however, that the enactment became invalid because the orphanage was subsequently abandoned. It is not necessary to consider whether the principle laid down in S. v. Evans, 106 N.C. (528) 752, applies to this case, for the evidence, which is not conflicting, in no aspect of it supports the contention. It is in evidence that the main residence building was burned, and that temporarily the *373 orphans were removed for shelter to Statesville, five miles distant, but that the authority which established the "orphans' home" had not changed its location from Barium Springs; but, on the contrary, the regents of the orphanage "had determined to rebuild the burnt house, and plans to that end were now in progress, and the other buildings constituting a part of such home had not been burned, and had never been abandoned, but had been all the while in use for the purposes appertaining to the home." Indeed, it appears that the defendant was engaged in manufacturing spirituous liquor within the prescribed distance on 12 November, 1891, which was after the establishment of the home, and before the burning of the principal building, as above stated, on 19 November. But we prefer to rest our decision on the ground just stated — that it appears that, in fact, the home was never abandoned.
It is, however, further contended that the provision in the act that it is unlawful to make, sell, give, or transmit to any inmate of the home, or anyone connected therewith, or to any person within three miles of said home, any spirituous or malt liquors, "without the written permission of the superintendent of the home," is unconstitutional and void, as it makes the operation of the act within the territory depend upon the will of the superintendent. Suppose the act had forbidden the sale within these limits except upon a permit or prescription from a physician, or the sale within a county except upon a license from the county commissioners, or within a town except upon a permit from the county commissioners, and then only when endorsed by the town authorities — would such restriction have been invalid? By what constitutional provision is the legislative discretion so restricted that it is forbidden from placing the power to authorize such sale within this three-mile district in the person designated in this act? (529) Indeed, authority conferred very similar to this is held valid inS. v. Yopp,
No error.
Cited: S. v. Snow,
(530)